Comments on: A Hard Lesson http://www.exportlawblog.com/archives/391 Latest News on DDTC, BIS, OFAC, and other export law matters Fri, 10 Feb 2012 10:06:23 +0000 hourly 1 http://wordpress.org/?v=3.0 By: Mike Deal http://www.exportlawblog.com/archives/391/comment-page-1#comment-20526 Mike Deal Wed, 17 Sep 2008 19:11:16 +0000 http://www.exportlawblog.com/?p=391#comment-20526 At least the BIS "see through rule" for the products covered by this ECCN can be deduced by a close reading and careful parsing of the ECCN. The DDTC "see through" rule is not articulated in ITAR, and until the single sentence that was buried deep without fanfare in the preamble of the recent Cat. VIII Final Rule, was really articulated in only Consent Agreements that certain respondents have negotiated, rather than in actual fully adjudicated administrative opinions. DDTC is in violation of its statutory obligation under 5 USC 551(a)(1) to publish in the Federal Register: "(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency" The "see through rule" is more agency lore than clearly established law. At least the BIS “see through rule” for the products covered by this ECCN can be deduced by a close reading and careful parsing of the ECCN. The DDTC “see through” rule is not articulated in ITAR, and until the single sentence that was buried deep without fanfare in the preamble of the recent Cat. VIII Final Rule, was really articulated in only Consent Agreements that certain respondents have negotiated, rather than in actual fully adjudicated administrative opinions.

DDTC is in violation of its statutory obligation under 5 USC 551(a)(1) to publish in the Federal Register:

“(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency”

The “see through rule” is more agency lore than clearly established law.

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